- Standing Committee B

[Mr. Roger Gale in the Chair]

Inquiries Bill [Lords]

Clause 26 - Publication of Reports

Jonathan Djanogly: I beg to move amendment No. 26, in clause 26, page 12, line 34, leave out
‘Minister, or the chairman if subsection (2) applies,’
and insert ‘chairman’.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 27, in page 12, line 36, leave out subsection (2).
No. 28, in page 13, line 1, leave out from ‘The’ to ‘may’ and insert ‘chairman’.
No. 29, in page 13, line 5, leave out ‘person’ and insert ‘chairman’.
No. 30, in clause 40, page 20, line 23, leave out from ‘inquiry’ to end of line 24.

Jonathan Djanogly: Welcome to the Committee in your capacity as Chairman, Mr. Gale. You will have seen how far we got on Tuesday, which will hopefully enable us to have a short day today. It is fair to point out in that regard the debt that the Committee owes to the experience and thoroughness of their noble lordships, who have enabled us to centre on the key outstanding issues, of which the Committee will appreciate there are a number at this stage.
I have already spoken at some length about the increased ministerial powers granted by the Bill and the damage that it is likely to cause to the independence and effectiveness of inquiries. I shall not repeat at length the arguments that were set out under the previous set of amendments, although I underline that the same principles apply to this group.
I draw the Committee’s attention to a joint statement issued on 22 March by Amnesty International, British Irish Rights Watch, the Committee on the Administration of Justice, Human Rights First, the Human Rights Institute of the International Bar Association, Inquest, Justice, Lawyers’ Rights Watch Canada, the Law Society of England and Wales, the Pat Finucane centre and the Scottish Human Rights centre. The pertinent statement ends:
“On 15th March, 2005, Judge Peter Cory, a retired Canadian Supreme Court justice who was appointed by the British and Irish governments in 2002 to investigate allegations of state collusion in six controversial murder cases, wrote a letter expressing his own fears about the potential effects of the Inquiries Bill. He described the Bill as ‘unfortunate to say the least’ and with specific reference to the case of murdered Belfast solicitor Pat Finucane stated, ‘It seems to me that the proposed new Act would make a meaningful inquiry impossible.’ Judge Cory noted that ‘the Minister, the  actions of whose ministry was to be reviewed by the public inquiry would have the authority to thwart the efforts of the inquiry at every step’ and he concluded that he ‘cannot contemplate any self respecting Canadian judge accepting an appointment to an inquiry constituted under the new proposed act’.
We agree with all of these views and urge Parliament to take them very seriously. An inquiry held under the Bill as currently drafted would not be effective, independent, impartial or thorough, nor would the evidence presented to it be subject to sufficient public scrutiny. Such an inquiry would fall far short of the requirement of international human rights law that an effective remedy be provided to the victims of human rights violations. Moreover, the passage of the Inquiries Bill in its current form would do great harm to the tradition of public inquiries in the UK and would undermine the important principles of accountability and transparency. In order to command public confidence, it is absolutely necessary that an inquiries system permit close independent public scrutiny and provide for the active participation of the relevant victims. The Inquiries Bill does not do this.”
Those are serious and contemplative words, indeed.
Amendments Nos. 26 to 29 seek to address the imbalance of powers between the Minister and the chairman in relation to the publication of an inquiry’s report.

Alistair Carmichael: The hon. Gentleman read an interesting passage, but he did not tell us whether he agreed with it.

Jonathan Djanogly: I agree with the greater part of it. If the hon. Gentleman had followed my speeches during previous sittings, he would appreciate that that is my position.
In its present form, the Inquiries Bill allows either the Minister or the chairman to publish the report, decide which aspects of the report should not be published and also decide on the timing of its publication. The Opposition believe that those powers should lie solely in the hands of the chairman. First, the Minister could clearly use those provisions to his political advantage. He can hide any facts that are embarrassing to the Government by withholding the incriminating aspects of the report. Also, he can use the timing of the report to his advantage and wait for the optimum moment, be it for maximum exposure, if the results were complimentary, or for minimum publicity, if the conclusions could be damaging to the Government. That political temptation may be just too much for any Minister to resist.
Secondly, as described by Lord Kingsland in the other place, we may find ourselves
“in a situation where chairmen, before they publish the conclusions of their inquiry, would feel obliged to send the draft conclusions to the Minister, to wait until they are approved or otherwise and then to issue only those parts that have been approved.”—[Official Report, House of Lords, 19 January 2005; Vol. 668, c. GC297.]
That would be totally against the public interest.
The principle behind the amendments received strong support from the Public Administration Committee in its report “Government by Inquiry”. The Committee stated:
“It is important that ministers should not manipulate the publication date of an inquiry report for their own ends or undermine a parliamentary debate on its findings by limiting access to it”.
In particular, the report made reference to Sir Richard Scott’s report on arms to Iraq. When concluding, the PAC specifically recommended that
“the presumption should be for chairs to handle publication. This should be reflected in the Bill.”
Similarly, the Joint Committee on Human Rights stated in its fourth report:
“We are concerned that this degree of ministerial discretion as to publication of the conclusions of an inquiry puts at risk both the independence and the appearance of independence to the inquiry”.
Further, in relation to inquiries into deaths, the Joint Committee found that clause 26 may fall short of compliance with article 2 of the European convention on human rights. The Committee doubted the Bill’s compliance with the provision, stating:
“The extent of ministerial control over whether the conclusions of an inquiry, or the evidence which led to those conclusions, will be made public has the potential to frustrate compliance with the Article 2 requirements that the inquiry be open to a sufficient degree of public scrutiny to ensure accountability, and that it provide the next-of-kin of the deceased with an explanation of the circumstances of the death.”
The Committee also wrote to the Lord Chancellor to ask why the degree of discretion in the Bill is considered compatible with article 2. It sought reassurances that responsibility for publication would be allocated to the chairman at the outset of an inquiry that engaged article 2, and that consideration would be given to making provision to that effect in the Bill. The Lord Chancellor in his reply to the Committee maintained that under the Bill there is a presumption in favour of the publication of the report. Despite those assurances, the Joint Committee’s concerns remain. It stated:
“In relation to the publication of reports, we re-emphasise our conclusion that where Article 2 is in issue, responsibility for the publication of the report should be allocated to the Chairman of the inquiry at the outset, rather than to the Minister, in the interests of ensuring an effective, as well as an independent, inquiry.”
The Conservative Opposition believe that that conclusion should be the case for all inquiries. In order to ensure that the Minister does not use the powers to his advantage, and that the individuals involved in an inquiry are sufficiently protected, it is essential to leave it to the chairman to decide which conclusions can be published and at what time.

Roger Gale: Hon. Members who have sat under my chairmanship before know that I take a fairly relaxed attitude to stand part debates. You can either have one at the beginning of a debate of this kind or at the end, but you cannot have both. In view of the hon. Gentleman’s preamble, which I permitted although it was not strictly in order, I daresay that the Minister will wish to respond. That being so, I take it that it is likely that we shall have the stand part debate at the beginning rather than the end of this sequence of amendments.

Alistair Carmichael: I am grateful to you, Mr. Gale, for that guidance, as I am sure all members of the Committee are. I echo the words of the hon. Member for Huntingdon (Mr. Djanogly) in welcoming you to the Chair. I recall that you chaired the first Standing  Committee on which I served in this Parliament, and if we believe certain rumours that I have heard, you may be chairing my last. There is a certain symmetry, some might even say a certain justice, in that.
I am in broad agreement with the thrust of the amendments tabled by the hon. Member for Huntingdon, and he does us a service by tabling them. I am concerned about the nature of clause 26; it leaves a great deal of discretion in the hands of the Minister. I have no doubt that if it were in the hands of the Minister present, that discretion would be exercised in a perfectly reasonable manner. However, it is possible that others who will hold ministerial office will not be as reasonable as the Minister. When considering legislation, one always has to consider the worst-case scenario—naming no names.
The matters described in subsection (5) that should be considered by a Minister when making a decision to publish seem exceptionally woolly. There is more than a whiff of a patrician element about them. The first matter is
“the extent to which withholding material might inhibit the allaying of public concern”.
That is a highly curious formulation of words. I do not know that it should be the business of government to allay public concern. In my experience, more often than not public concern is justified. We should not encourage the inhibition of the allaying of public concern—sorry, that is the wrong way round, which shows how woolly the wording is. The second matter to be considered is
“any risk of harm or damage that could be avoided or reduced by withholding”
information. That is a wide discretion to give the Minister.
The matters cited are all ones that should be in the remit of the inquiry. If the inquiry is to do its job properly—which, returning to points made in debates on Tuesday, means that it is seen to be independent—there should be no difficulty with their being in its remit. There should be no problem with the chairman applying those considerations. If the inquiry is to be independent and to be seen to be independent, the opportunity for such ministerial interference is not only unnecessary but damaging.

Christopher Leslie: Good morning, Mr. Gale. As always, it is a pleasure to serve under your chairmanship.
First, I will give a little background to clause 26. Its drafting reflects the different practices of inquiries and some of the legislation that is being replaced or amended by the Bill. Generally, an inquiry submits its report to the Minister, because it is a ministerial inquiry established by the Minister. It is the duty of the Minister to publish the report. That has been the practice for many years and in many inquiries. Under clause 27, we are introducing another step: the Minister lays the published report before Parliament. So, we are enhancing many of the publication steps. However, the Bill also allows the Minister to pass on the responsibility for publication to the chairman where that is more appropriate.
For a number of reasons, I do not agree with the amendments. Until now, surprising though it may be, there has been no general statutory obligation to publish inquiry reports. There has, therefore, been no limit on the types of information that could be withheld. However, the vast majority of inquiry reports have still been published in full—even reports of wholly private inquiries such as the Penrose inquiry on Equitable Life. We expect that that will be the case for future inquiries.
Clause 26(3) says:
“Subject to subsection (4), a report of an inquiry must be published in full.”
The powers to withhold information from publication are limited. We made amendments in another place to ensure that the powers could not be used to prevent disclosure of, for example, any information under the Freedom of Information Act 2000—so that there are clear limits to the powers.
The amendments tabled by the hon. Member for Huntingdon would leave such decisions entirely to the chairman. They would leave Ministers unable to fulfil their duty to protect the public interest for national security reasons or to safeguard an individual’s rights under human rights legislation. They would remove important safeguards against serious harm or damage.
I hear and understand what the hon. Member for Orkney and Shetland (Mr. Carmichael) says about the wording of subsection (5), but I believe that it covers neatly the matters that the person in charge of publication must have regard to when they make such decisions, and it sets out clearly the considerations about allaying public concern and the damage that could be done by withholding or releasing material. In fact, it is fairly straightforward.
The Minister will often be in a better position than an inquiry chairman to decide whether disclosure of particular information is likely to cause harm. A good example is an inquiry that is considering information related to national security issues. Two seemingly innocuous pieces of information may have the potential when taken together to cause harm. In some situations, something as simple as using a direct quote from a source may be harmful, but harm could easily be avoided by paraphrasing. The Government have greater expertise and responsibility in security matters to spot the dangers and to judge the risk involved—that is the nature of government—whereas the chairman may not be personally aware of the dangers. As I said, we do not expect that situation to arise in the vast majority of cases, but we must be able to act to protect the public interest on national security grounds, among others.
I remind the Committee that the powers are clearly defined in the Bill. They are defined better than they have been in previous inquiries legislation. They are now enshrined in the Bill, and, as we know, any decision to withhold information will be reviewable by the court. That is another safeguard. Given those safeguards and the fact that the clause is much more up  front about the framework for publication of reports, I ask the hon. Member for Huntingdon to withdraw the amendment.

Jonathan Djanogly: The Minister implied that this is an excellent clause because there have been no such rules before. Indeed, there have not been any, and it is certainly a good thing that the Bill addresses the requirements. However, the fact that to date there have been no rules on the requirement for publication of the report does not mean that now that we are addressing the issue we should legislate wrongly, particularly by giving too much power to the Executive in respect of publication.
The hon. Member for Orkney and Shetland said that the subsection (5) reasons were “woolly”, and I agree with him. In the context of the ministerial power involved, that is particularly the case. For those reasons, I shall ask for a Division.

Question put, That the amendment be made:—

The Committee divided:  Ayes 3, Noes 8.

NOES

Question accordingly negatived.

Clause 26 ordered to stand part of the Bill.
Clauses 27 to 35 ordered to stand part of the Bill.

Clause 36 - Offences

Question proposed, That the clause stand part of the Bill.

Jonathan Djanogly: The clause relates to offences that may be committed in the event of non-compliance with the inquiry or due to actions that are likely to hinder the inquiry in some way. There is universal acceptance for the principle behind the clause, which is that although the inquiry may not enforce sanctions when actions frustrate it, it is important that court support is available to ensure the smooth running and effectiveness of the inquiry process. I have two points for clarification in respect of subsections (5) and (6), which specify who can bring proceedings and under which circumstances.
It is appropriate that a distinction be drawn between the offences under subsection (1) and those under subsections (2) and (3). The former relates to offences when a person does not, without reasonable excuse, comply with a chairman’s notice under clause 22.  Clause 22 notices can require a person to attend the inquiry to give evidence, to produce documents or to provide any other thing in their custody that the chairman feels may aid in his investigations. As subsection (1) has a narrow and directed ambit, applying only to such notices, it seems appropriate that only the chairman can bring proceedings for non-compliance. Only he will know when such action may hinder the inquiry to such an extent that proceedings would be appropriate. The enforcement of clause 22 notices will also be relatively swift, as the chairman need not go through the Director of Public Prosecutions to institute proceedings.
By contrast, subsections (2) and (3) have a much wider scope. They relate to any acts that may distort or suppress evidence or relevant documents. Given the general application to all issues relating to inquiry evidence, it is feasible that persons other than the chairman may have an interest in bringing proceedings. The Bill recognises that, but it also recognises the strength of opinion and possible bias of many people interested in an inquiry’s process. As such, subsection (6) requires that all proceedings brought under subsections (2) and (3) must go through the DPP. The Conservative Opposition fully appreciate the importance of ensuring that the availability of offences under the Bill and the related procedures are not abused by persons with an interest in the inquiry.
Why is it not open to the chairman as well to bring proceedings for offences under subsections (2) and (3)? He is chosen for his independence and so would not have any bias or ulterior motive in using the procedure to further any aim other than the efficient and effective progress of the inquiry. The need for him to go through the DPP each time he wants to bring such proceedings may be a waste of time and resources. In most instances when such proceedings are brought, it will be the chairman who will instigate them. Also, as with clause 22 notices, the chairman will be best placed to know when a person is distorting or suppressing evidence. No doubt the DPP would ask for the chairman’s judgment as to whether any complaints of such action were well founded and not tainted by bias. That underlines yet again the important role that the chairman can and should play in bringing proceedings for all clause 36 offences.
The Government state in the explanatory notes that they would like to leave open the possibility
“that prosecutions can be brought after the inquiry has ended (which would not be the case if the chairman had to bring them).”
Although that may be a reason to include the DPP in the process, it provides no basis for excluding the chairman from bringing proceedings during the lifetime of the inquiry. In any case, I imagine that proceedings would be brought after the conclusion of the inquiry only in exceptional circumstances, such as the destroying of evidence right at the end of the inquiry process, leaving little time to go through the courts. How does the Minister expect the post-inquiry procedure to be put to more frequent use? Such an unlikely occurrence provides little justification for the  exclusion of the chairman from the procedure at all times and for the increase in bureaucracy and red tape involved in that process.
My second point can be dealt with more quickly. I note that subsections (5) and (6) prescribe who should instigate proceedings for the various offences under clause 36 in England, Wales and Northern Ireland. Scotland seems to have been overlooked. The explanatory notes provide some enlightenment in that in Scotland the offences under subsections (2) and (3) are the responsibility of the Crown Office and the Procurator Fiscal Service. However, no mention of Scotland is made in relation to the offence under subsection (1). No doubt there is an entirely sensible explanation for that, but I would appreciate it if the Minister clarified matters.

Alistair Carmichael: I find it difficult to share the hon. Gentleman’s concerns. I note that the offence is only triable summarily. My recollection is that under the terms of the Criminal Procedure (Scotland) Act 1995, summary prosecutions can only be brought in Scotland by the procurator fiscal acting on behalf of the Lord Advocate. There is no scope for anyone else to prosecute in summary courts, with the exception of truancy offences, which can still be brought by local education authorities. I presume that that is why the point is properly made in the explanatory notes that the process will be carried out by the procurator fiscal.
In my view, this is the sort of situation in which the prosecution ought to be brought by the Director of Public Prosecutions acting in the public interest, as would be the case north of the border by the equivalent officers there. I will not go too far into this because I respect the fact that English and Welsh jurisdiction has always taken a different approach to the question of who brings prosecutions and there is a much wider range of bodies with that entitlement. I cannot pretend to understand why that should ever have been the case, but there are many things in England and Wales that I do not understand, which I merely have to accept.
I can certainly see circumstances in respect of which the offence would be very grave, so why is it to be tried summarily only? In a case of significant national importance, the route should be open to bring a prosecution on indictment. That does not seem to be open to the court. The maximum penalty is level 3 on the standard scale, which, from recollection, is about £1,000—I might be wrong about that—or six months imprisonment, which is the statutory maximum for a summary court in Scotland.

Christopher Leslie: The clause provides sanctions for non-compliance with an order of the inquiry or for actions that are likely to hinder the inquiry. If an inquiry has formal powers to compel information, there must be a sanction consequent on that for anyone who fails to comply with an order made under those powers. Although experience of past inquiries shows that sanctions are rarely likely to be needed, it is nevertheless important to have them. The recent example of Lord Laming successfully bringing a prosecution against a witness who refused to comply  with the inquiry into the death of Victoria Climbié demonstrates that, on occasion, some sanctions are necessary.
The hon. Member for Orkney and Shetland asked why the offence is made summarily only. The offences created in the Bill are similar to those in section 250 of the Local Government Act 1972, which is the model used in many subject-specific inquiry powers. We decided to take that precedent and use it in this case. I understand that an argument can be made for stronger powers and I take his point, but that is our rationale for drawing up the provisions in that way.
Subsection (1) makes it an offence not to comply without reasonable excuse with a request under clause 19. It is for the chairman to decide whether to institute a prosecution under that subsection. He also has the alternative option of using the enforcement route under clause 37. It is important that the inquiry has access to all available evidence, subject to clause 23 on privileged information.
Subsections (2) and (3) make it an offence deliberately to distort or conceal evidence. Those sanctions can be applied only to actions taken after an inquiry has been set up and are framed so that a person could not unwittingly commit an offence. The clause also ensures that actions authorised by the panel are not offences.
We do not want a situation in which anybody can bring a private prosecution simply because they disagree with particular evidence, which is why prosecutions under subsections (2) and (3)—to answer the query from the hon. Member for Huntingdon—can be brought only by or with the consent of the Director of Public Prosecutions or, in Northern Ireland, by the DPP for Northern Ireland. Since it would be possible for prosecutions to be brought following an inquiry—although only for actions that had occurred during it—it is not appropriate for the decision about whether to prosecute to be taken only by the chairman.
Essentially, the hon. Gentleman asks why there is a difference between those things. Our concern is that offences might come to light after the end of an inquiry, at which point it would not be appropriate for the chairman to have a role in those proceedings because the inquiry would have concluded. That was how we framed the clause.

Jonathan Djanogly: Although the chairman will obviously no longer be chairman of the inquiry because the inquiry will have finished, that does not mean to say that he could not have a role. Judging from the explanatory notes, I think it is the Government’s intention that he would have, even though the DPP would be involved. That is what I am trying to tease out. Will the Minister confirm that the chairman would be brought into the process, because he would still know what the situation was?

Christopher Leslie: Once the inquiry has finished, the chairman is a private citizen like anyone else and he may or may not wish to get involved in bringing the  prosecution. We have framed subsections (2) and (3) so that things are not left only to the chairman, because, in effect, there will not be a chairman as the inquiry will have concluded. Of course, the chairman could, in theory, with the permission of the DPP, be involved, but that is not a likely scenario. I accept that it is a hypothetical possibility, and it is not excluded by the way in which we have framed the legislation. However, we understand and appreciate that, after an inquiry has finished, it is more appropriate that those matters rest with the DPP.

Question put and agreed to.
Clause 36 ordered to stand part of the Bill.
Clauses 37 to 39 ordered to stand part of the Bill.

Clause 40 - Payment of inquiry expenses by Minister

Jonathan Djanogly: I beg to move amendment No. 31, in clause 40, page 20, line 25, leave out subsections (4) and (5).
Throughout the Committee, I have described our concern that the Minister will be entrusted with too much power. Although I will not take up time by running through those arguments again, I do not want my brevity to distract from the importance of the amendment or the particular way in which the Minister’s power may, in this case, risk the independence and effectiveness of the inquiry process.
The amendment would remove the Minister’s ability to withhold the funding of an inquiry that strays outside its terms of reference. The power is unacceptable to us for two reasons. First, it would, in effect, allow the Minister to dictate the path that the inquiry should take. He could at any time claim that the inquiry was outside its terms of reference and so withhold funds, which would, in practice, be tantamount to stopping it in its tracks. That power could be used to the Minister’s advantage to prevent an inquiry from entering an area that could be damaging or embarrassing to the Government. That will clearly affect its credibility.
Secondly, it is for the chairman to interpret and apply the terms of reference once the inquiry is up and running. He is the man on the ground and only he can know the exact path that the inquiry may need to follow. For example, if new evidence arises that opens a new avenue to be explored, only the chairman would have intimate knowledge of its interrelationship with other aspects of the inquiry. As such, only he should be able to decide, in an informed and independent manner, whether to follow up that lead and bring about the related expenditure. The Minister may not be in a position to make that judgment at the outset because uncertainty is inherent in an inquiry. One just cannot know the exact direction that an inquiry will take; if one does, the inquiry may not be necessary. Our amendment removes the ability of the Minister to dictate how the terms of reference are applied, by withholding funds when he argues that those terms of reference have not been respected.
The approach taken in the amendment is supported by the Joint Committee on Human Rights, which stated in paragraph 221 of its fourth report:
“Whilst the terms of reference of an independent inquiry may be open to differing interpretations, their interpretation and application should be a matter for the Chairman of the inquiry, if independence is to be maintained. We are concerned that this provision undermines the role of the Chairman of an inquiry in interpreting and applying his or her terms of reference, and leaves open the possibility of undue ministerial influence on an inquiry”.
Indeed, the Committee wrote to the Lord Chancellor to express this concern and also asked why the clause is considered to be compatible with article 2 of the European Convention on Human Rights. The Lord Chancellor replied that the clause provided a mechanism for ensuring that the inquiry remained on track and argued:
“as the Minister would only be intervening to ensure the inquiry keeps within the remit agreed at the outset in the terms of reference, I do not consider that this clause undermines the role of the chairman or affects compatibility with Article 2”.
The Committee appreciated the need for an inquiry to adhere to its terms of reference, but repeated its view that a characteristic of an independent inquiry is that the terms of reference are interpreted and applied by the chairman and the inquiry panel. The Opposition support this view and argue that that aim cannot be fully achieved while the Minister has the ability to remove funds to ensure that the terms of reference are interpreted and applied in a particular way.

Paul Tyler: I am sympathetic to at least the intentions of the amendment. The Minister may recall that concerns were raised in the other place by my noble Friends and others about subsection (3), which originally used the phrase “reasonably incurred expenses”, and that seems to have been dealt with.
The amendment, which would remove subsections (4) and (5), is useful. I hope that it will at least enable the Minister to explain in more detail exactly how the channel of communication between the chair of an inquiry panel and the appropriate Minister will operate. I hope that there would never be a situation in which a panel was acting outside its terms of reference. I am sure that we all take that view, but in such circumstances it is important that the means of communication are absolutely clear to all concerned and I hope that that can be clarified now. Considering that the Government gave way on the issue of the Minister consulting the chair of the inquiry when setting up and amending the terms of reference, that matter becomes even more important.
The Committee may wish the Minister to explain how the chair of an inquiry could have some come-back on an issue of this sort. If, for example, the Minister notifies the chair that he has been acting outside his terms of reference, does that chair then have a right of appeal, as it were, and an opportunity to explain to the Minister why he acted as he did? We can all imagine circumstances in which an action was totally reasonable, but an explanation may be required. We may need to know precisely why the circumstances have arisen, but in addition we may  need to specify in the Bill how that dialogue is to take place. After all, in other circumstances it would simply require the Minister’s belief that the chairman had acted outside the terms of reference, which would clearly be unsatisfactory. I hope that the Minister will clarify precisely how that relationship is intended to develop so that we can avoid any possible difficulties.

Christopher Leslie: The Bill, particularly in clause 40, places a welcome new statutory obligation on the Minister to fund an inquiry, which does not exist in current legislation. I know that the Opposition tend to look at the glass as half empty, but it is a positive step forward to enshrine the obligation in the Bill, and I would have thought that they would welcome that. Of course, any obligation must be properly defined and its limits set out. The extent and the shape of those limits are the point of contention here.
It is highly unlikely that the power to withdraw funding would ever be needed, but it has to be included as an emergency safeguard. We would not be doing our job in safeguarding public money if the Bill did not provide some mechanism to prevent expenditure on matters wholly outside the terms of reference of an inquiry. If the amendment were agreed, it could have the effect of giving an inquiry a blank cheque to spend money on anything it wanted to. The Minister would then, in theory, be obliged to fund that. Obviously, ministerial accountability to Parliament, and ultimately to the taxpayer for their money, requires that the Minister has some control over that money. That is one of the reasons why I do not want to see the Committee accept the amendment.
There are strict conditions on the withdrawal of inquiry expenses by a Minister. The withdrawal of funding would be a temporary measure used as a last resort in relation to a particular activity. Funding could never be withdrawn retrospectively. Clause 40 requires the Minister to give the chairman a formal notice. That is the communication process in extremis. Costs arising from the period before the notice is given would have to be met. In practice, a formal notice would be the end of a dialogue between the Minister and the chairman. To answer the point raised by the hon. Member for North Cornwall (Mr. Tyler), that dialogue would be ongoing before the formal notice stage. Once the inquiry returned to performing the task set out in its terms of reference, funding could be reinstated.

Peter Atkinson: Surely the heart of this is the terms of reference and how they are interpreted. A situation could arise in which the chairman and the Minister disagreed on the minutiae of the terms of reference. In that sort of dispute, who would be the final arbiter?

Christopher Leslie: Of course, I accept that it is for the inquiry to interpret the terms of reference set out for it. The power would only ever be used if the inquiry were very clearly working outside its terms of reference. The hon. Member for North Cornwall asked what recourse the chairman had in those circumstances. In essence, the powers could not be used to stop an inquiry looking around the terms of reference or at  information that the Government might find embarrassing, because judicial review would inevitably be the result. There is always an obligation on Ministers to act reasonably. Ministers would not want to exercise a power unreasonably, but, if any Minister did and withdrew the funding for an inquiry, judicial review would be a possible consequence.
Without the power to withdraw funding, the Minister’s only option for safeguarding public funds would be to attempt to end the inquiry under clause 13. That would mean that all the money spent on the inquiry so far would have been wasted and whatever problem the inquiry had been set up to investigate would not be resolved. That sort of nuclear option is probably not the only safeguard that should be included in the Bill. The option in this clause is a slight refinement on that. Again, at this stage, I do not envisage circumstances in which it could be used, but we need to have that safeguard in the Bill just in case. For those reasons, I hope that the amendment will be withdrawn.

Jonathan Djanogly: The Minister maintained that the measure would be relevant only if the inquiry was acting very clearly outside its terms of reference. To that extent, I accept what he has to say. I just hope that there are not future occasions when someone has to repeat his words because a Government have stymied some inquiry on a technicality. However, on the basis of what he said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Clause 40 ordered to stand part of the Bill.
Clause 41 ordered to stand part of the Bill.

Clause 42 - Rules

Anne Campbell: I beg to move amendment No. 37, in clause 42, page 21, line 20, at end insert—
‘(1A)Rules under subsection (1) (a) may make provision for—
(a)consultation on the terms of reference;
(b)estimated costs at the commencement of an inquiry;
(c)estimated duration at the commencement of an inquiry.’.
It is pleasure to be sitting on a Committee under your chairmanship, Mr. Gale. I am conscious that when the Committee considered earlier clauses there was much debate that was relevant to the amendment, so I shall not speak to it for long. I hope that my hon. Friend the Minister will see fit to accept the amendment, which is very mild. It simply says:
“Rules under subsection (1) (a) may make provision for—”
and goes on to talk about
“consultation on the terms of reference; estimated costs at the commencement of an inquiry;”
and
“estimated duration at the commencement of an inquiry.”
That would not unnecessarily constrain the Government, but would set the framework for good practice. It must be noted by the Committee that the Minister has not given way on anything so far. I hope that he will break the habit of a lifetime and give way on this amendment.

Mike Hall: Don’t hold your breath.

Anne Campbell: I am not.
The Select Committee discussed consultation on the terms of reference at some length, and some years ago the Salmon commission said that the terms of reference should be drawn as precisely as possible.
In the course of taking evidence, we found that negotiation appeared to take place between the Lord Chancellor and the chairman of an inquiry. Lord Falconer told the Committee that if Lord Hutton had said:
“in order to get to the truth of what happened leading up to Dr Kelly’s death, I need different ... terms of reference,”
he—the Lord Chancellor—would have agreed. That is a strong indication that the Government are open to such negotiation between the Lord Chancellor and chairmen. In such circumstances, it would be sensible to enable more public consultation on the terms of reference. There is little public trust in politicians at the moment, so it is sensible for us to be as open and transparent as possible about the ways in which we do our business.
The terms of reference are extremely important when setting up an inquiry. Indeed, when the Government gave evidence to the Committee, they conceded that there could often be a case for announcing terms of reference after a set period—perhaps a few weeks—to allow for discussion and preliminary investigation, and to allow individuals to make representations to the Minister setting up the inquiry.
In its conclusions and recommendations, the Select Committee said:
“It is essential that the terms of reference enjoy broad consensus and are drawn up in a way which allows full and proper examination of the facts and do not fetter the inquiry in its task. We recommend that the chair of an inquiry should have the ability to negotiate the precise terms of reference before agreeing to undertake the inquiry. We also recommend that the Inquiries Bill should provide specifically for a short period of consultation after any announcement to ensure that the final terms of reference meet the expectations of a particular inquiry. This should include appropriate parliamentary involvement.”
I am conscious that the hon. Member for Orkney and Shetland tabled an amendment on this point, relating to an earlier clause, which he withdrew after some discussion, but I am giving the Minister the opportunity to reconsider the issue and, perhaps, make us all happy by saying that he agrees after due consideration that the amendment is sensible.
Paragraph (b) of the amendment refers to costs. The hon. Member for Huntingdon tabled a similar amendment, which we debated earlier in our proceedings, when there was some discussion about the procedures and who would be responsible for keeping the costs under control.
Under the Bill, the chairman is obliged to have regard to the need to avoid unnecessary costs in considering how to conduct the inquiry, but the Select Committee was struck by the way in which the US Congress conducts its inquiries, which is very different. It may involve congressional legislation, which may not only establish the inquiry but determine its budget. For example, the Act that established the 9/11 commission provided for a budget of $3 million.
Obviously, we have a different legislative framework, and I do not suggest that we need to go as far as placing a limit on the expenditure, but the Select Committee recommended that Ministers should announce a broad budget figure fairly early on, at the start of the inquiry, and that any increase on the announced figure would need to be publicly explained at the end of the inquiry, when final costs were publicised. That approach would not unnecessarily constrain the work of the inquiry. I do not foresee any unnecessary difficulty for the Government in taking that course. However, in a time when there are, perhaps, concerns about the way in which we spend public money, it is right that the Government should be seen to have due regard to costs in that way. It would not seem difficult to make an announcement at the start of the inquiry about the broad costs, as well as the length of the inquiry—something that of course relates to the cost—and, at the end, to announce the actual cost and provide an explanation if the inquiry has run over budget.
I hope that the Minister will be prepared to accept amendment No. 37.

Jonathan Djanogly: I commend the hon. Member for Cambridge (Mrs. Campbell) on her constructive input and recognise how she has represented the interests of the Select Committee, on which she serves very well. The amendment deals with the principle that we promoted in amendments Nos. 4, 5 and 20, and I shall not take up the Committee’s time by repeating our arguments. However, in summary, amendment No. 4 would have placed some control over ministerial freedom to draft the terms of reference, and amendments Nos. 5 and 20 dealt with the pressing issue of the ever-increasing costs associated with public inquiries.
The hon. Lady has approached those concerns in a slightly different way. Instead of prescribing more intervention from the chairman or Parliament for every inquiry, her amendment would provide an opportunity for the appropriate authority to introduce rules for every specific inquiry. It should be stressed that the introduction and extent of such rules would be optional, and therefore their effectiveness might be limited.
As to the terms of reference, we asked for agreement between the Minister and the chairman to be obligatory. By contrast, the amendment would allow the authority to “make provision for” consultation. That might go some way to ensuring that the chairman is adequately consulted, but it would not ensure  agreement, and its application to consultation with the chairman for the original terms of reference might be limited.
The Committee debated the need to control costs and avoid unnecessary expenditure of taxpayers’ money. The amendment would give the appropriate authority the option to make provision for
“estimated costs at the commencement of an inquiry”.
We fail to see why such provision should be at the discretion of the appropriate authority. It should be obligatory at the outset of every public inquiry, as addressed in amendments Nos. 5 and 20.
The hon. Lady has also proposed that control be available in relation to the duration of inquiries, an issue that has not, until now, been tackled by the Committee. We welcome the introduction of that and she makes valid points. For example, the Saville inquiry was expected to take one year to complete. That was nearly seven years ago and we are still waiting for the final report. The disastrous collapse of the Jubilee line fraud trial after 21 months, at a cost of £60 million, shows how vital effective case management is, whether it is for a trial or an inquiry.
Some checks on the duration of inquiries are required. An overly long inquiry translates into increased costs and a greater commitment of time for those involved. It also allows the period of uncertainty regarding the subject matter of the inquiry to continue, which runs contrary to public interest and may cause much distress for the next of kin when it relates to someone’s death. However, it is difficult, if not impossible, to forecast at the outset exactly how long an inquiry will last. Therefore, it seems sensible to give the appropriate authority the option of calling in the chairman to check what is happening, if it is felt that the inquiry is taking an unreasonably long time.
On the terms of reference and costs, the optional measure does not go far enough to ensure the involvement of the chairman and the avoidance of over-expenditure. However, given that our amendments were not accepted by the Government, we are willing to support the amendment in the alternative. We also welcome the recognition of the need to control the duration of inquiries. On that basis, we consider that a Division on the amendment would be appropriate.

Michael Connarty: I was not going to speak, but I was so impressed by the reasonable nature of the amendment and the way it was moved that I will give it further thought. It seems to me that some of the consultations need not be covered by the Bill if there is a custom of doing what those consultations suggest. That may be more reasonable. I have some reservations about estimating costs and duration because, instead of focusing on the inquiry, those who have an axe of a political nature to grind, will focus on the estimates.
The Government have set many targets to raise the standards of public services, but they get attacked because they may not reach such a high standard. That becomes a political point of contention. I was slightly disappointed that my hon. Friend the Member for Cambridge referred to the United States. The  Whitewater inquiry, which ran right through the Clinton Administration, was not a good reference for cost or duration, or even purpose, because it did not find anything on which to try anyone. Is there a custom of consultation, because it is necessary for the chair of an inquiry to have some dialogue with the person who sets the terms of reference?

Paul Tyler: I am sympathetic to the amendment. I pay tribute not only to the hon. Member for Cambridge, who moved it, but to the work of the Select Committee. When a Select Committee reports to the House on an issue of this sort, the House must carefully consider how seriously we take that advice. The Select Committee has carefully assessed an issue that is of great importance when we legislate. It would be inappropriate for me to talk about the issue at length, but we seem to think that Select and Standing Committees are a race apart and that we cannot have cross-fertilisation of ideas and scrutiny from one to the other.
I understand the point made by the hon. Member for Falkirk, East (Mr. Connarty), but I think that the amendment is well drawn because it is not prescriptive, it is permissive. That was the product of careful discussion in the Select Committee.

Jonathan Djanogly: The hon. Gentleman makes an important point about Select Committees which I support. He will appreciate that I have given the Select Committee’s point of view on almost every amendment that I have tabled. It is a shame that the Minister has not addressed that.

Paul Tyler: I acknowledge that and am grateful for the hon. Gentleman’s support. I say in parentheses that I was locked in one of these Rooms in the middle of the night in 1974 when I had the casting vote. I hope that this is my last appearance in a Standing Committee because I do not want to repeat that in the next Parliament.
Careful consideration was given to the subject in the Select Committee. The amendment draws on that study. I am particularly supportive of paragraph (a) in the amendment which is on consultation. At the moment, the Bill is remiss in that it does not give sufficient emphasis to consultation. It will be improved if there is a specific, albeit permissive, reference to consultation, as in the amendment. There has been a lot of discussion about that at all stages and it would be an improvement if there were specific reference to consultation on the terms of reference.
I acknowledge that there is also value in paragraphs (b) and (c) of the amendment because they make clear and open the issues with which the order of the inquiry may take place. I understand that in the other place the Minister said that there was nothing to stop the Minister from consulting anyone he wished. Of course: that is a fact of life. However, we surely have a responsibility to give more specific guidance than just, “Well, it’s good practice. Wouldn’t it be nice if ... ?” I see the hon. Member for Cambridge nodding. That  was the issue that the Select Committee was trying to address, taking account in particular of the views of those who had been affected by the events that led to the inquiry.
There has been much lobbying from groups interested in inquiries. I take two examples: Deepcut and the death of Patrick Finucane. In those cases, the circumstances were such that those people most intimately affected felt that the terms of reference were either too narrow or drawn in a way that did not take full account of their concerns. If, in those circumstances, the confidence in the validity and value of the inquiry of those most deeply affected is reduced, that is serious.
We are trying to improve confidence in the way in which inquiries are handled, and I very much hope that the Minister will be prepared, as the hon. Lady was, to accept the suggestions as a useful addition that in no way weaken the intention of the Government or the Bill.

Christopher Leslie: I shall try my best to answer the perfectly reasonable points made by my hon. Friend the Member for Cambridge, although much as I might be tempted to give way on the subject, I am sorry to inform her that I do not intend to. That probably will not surprise her, but I hope that my eloquent argument will persuade her that there are very good reasons why the amendment should not be added to the Bill.
I understand that Select Committees often analyse subjects with great seriousness and in great depth. The Bill was prompted by and large by our debate with the Select Committee, so much good work has come from that dialogue, and the Bill is in many ways the product of it. There is always the impetus and temptation to add to a Bill, but I urge my hon. Friend to consider the fact that sometimes we must judge where the balance lies between things that need to be enshrined rigidly—in concrete—on the face of a Bill and in statute and those things that can take place outside statute, with good practice, guidance and convention. We should not always fall into the trap of writing every dot and tittle of legislation in a Bill. That would not necessarily constitute good governance for our country.
I set my remarks in that context because much can be achieved in the spirit of my hon. Friend’s amendment without putting everything in the Bill. She wants to amend the clause, which deals with rules, effectively saying that there should be specific rules on the nature of consultation, cost estimates and the duration of an inquiry. I have concerns about that.

Paul Tyler: The words that the Minister uses do not accurately reflect what the amendment says. The amendment says “may” make provision. It does not demand, insist or prescribe.

Christopher Leslie: I understand what the hon. Gentleman says, but I cannot envisage circumstances in which we would want such rigid rules. Even if rules were made, they may have implications for, and be misinterpreted by, other inquiries. Inquiries can cover a vast array of territory on any number of issues. As is normally the case, to answer my hon. Friend the Member for  Falkirk, East, there can be confrontation with interested parties about the terms of reference of an inquiry. Sometimes there will be circumstances in which Ministers must react exceptionally swiftly in the public interest—perhaps to a major crisis—and they will need to move very fast. There is also a requirement to consult the inquiry chairman, and we debated wider consultation. To a certain extent, we are repeating some of the issues raised then.

Michael Connarty: The Minister knows that when people come to discuss what interpretation to place on the Act, they will read the Official Report to determine what he said. So is he saying that he would expect the person who makes the rules of the inquiry to consult the person who will be its chairman, if time allows?

Christopher Leslie: Indeed, past practice has been that there has been wide consultation on most inquiries, and we expect that to continue—I give that assurance to my hon. Friend—but we cannot specify it for absolutely every situation, as we cannot predict what eventualities will arise. However, there is a requirement for the Minister to consult the chairman in such circumstances, and that will be helpful.
Nothing in the current wording would prevent estimates of cost or duration from being included in the rules, as they fall within the definition of “evidence and procedure” under clause 42. Indeed, as I said when we debated some of these issues on Tuesday, my noble Friend Baroness Ashton made a commitment to the other place that there would be consultation on things such as estimates. I am happy to repeat her commitment, but I do not wish to pre-empt the consultation on the rules.
The Government said in their response to the Public Administration Committee report that they were sympathetic to the idea of publishing estimates of costs and duration. However, we must consider carefully whether that can be done in a meaningful way, particularly bearing in mind the debate about the drawbacks of including rigid requirements for estimates in the Bill. That is why we want to consult on that point.
On the other hand, I am not clear what would be achieved by rules on consulting on the terms of reference. The Minister must consult the chairman, as I said, and there is nothing to prevent wider consultation if the Minister considers it appropriate, but some of the same objections to including an obligation for consultation in the Bill apply to including one in the rules. It is not possible to come up with a meaningful definition of how widely the Minister is expected to consult which does not create false expectations and increase the possibility of challenge, perhaps right at the outset of an inquiry. That would be undesirable.

Anne Campbell: Does my hon. Friend agree that much more public consultation in the case of the Hutton inquiry, for example, would have been useful? There was a great deal of controversy about the way in  which it was set up and the narrowness of its remit. I am sure that there was private consultation between the Lord Chancellor and Lord Hutton, but would not it have been better to have had the public debate before the inquiry got under way rather than afterwards? There was a great deal of criticism, particularly in the media and from politicians, about the narrowness of the inquiry. It is always better to get such things out of the way beforehand rather than have them come back to bite one afterwards.

Christopher Leslie: With the greatest of respect to my hon. Friend, it is slightly unfair to say that in all circumstances there must be a particular period for consultation before a Minister sets up an inquiry or sets out its terms of reference. Consider what the public might expect from a Minister, particularly if a crisis arises or an emergency situation develops. They naturally look to the Government to take a lead, to set up an inquiry and to get on with an investigation and make progress in finding out what went wrong in a particular situation, rather than having a protracted fixed period for consulting on whether and when the edges of the terms of reference might or might not be defined. I am not saying that consultation might not be a good thing in normal circumstances, but it would not be right to set it out in fixed and rigid rules.

Anne Campbell: My hon. Friend makes two points. The flavour of the amendment is permissive, in that it says “may” rather than “shall” or “must”. It would therefore be up to the Government of the day to decide whether to follow the rules suggested. It is perfectly possible that they would have good reasons, including urgency, for not following them.
In their evidence to the Select Committee, the Government conceded that there could be a case for announcing terms of reference—perhaps a few weeks after the inquiry had been set up—to allow for discussion of the preliminary investigation. So an inquiry could be set up, and much of the preliminary work could be done, without the terms of reference, which would still be at the stage of public consultation.

Christopher Leslie: Again, I am not convinced of the wisdom of taking that course of action. I hear what my hon. Friend says about “may”, but my understanding is that it is used quite frequently in clauses dealing with rule-making powers, where it is often given more weight than might be the case in normal parlance. That could leave an inquiry’s terms of reference open to challenge and lead to protracted court discussions, which would not necessarily be appropriate.
I also remind my hon. Friend that rules in such legislation normally relate to the evidence and procedure involved in running an inquiry, not to the decision to set up an inquiry in the first place. So, again, I have my doubts about whether clause 42 is the right place to deal with the problem. The idea that there should be full consultation in normal circumstances might be an appropriate topic for guidance, and we might be able to consider it in a  different context, but I do not necessarily agree that we should always put these things in legislation.
It can often be helpful to have time for consultation, and clause 5 is drawn up in a way that makes that possible. However, the need for consultation varies from case to case, which is why it would be wrong to go for the rigidity suggested in the amendment. I understand my hon. Friend’s case, but it is not appropriate to the rules clause and it would not be desirable to have rigid rules setting out how consultation must be carried out. However, I thank her for at least raising the issue. In the general consultation that we shall have on the rules, we shall want to go into such things in more depth. I urge her to consider those comments and withdraw the amendment.

Anne Campbell: I must confess to being disappointed that my hon. Friend is not prepared to accept this reasonable amendment. Setting out the proposed framework in the Bill would provide for a Minister to take different action if that was considered necessary at the time. It would also provide a good practice framework under which inquiries could be conducted.
I completely take my hon. Friend’s point that a Minister may need to act quickly to prevent undue public concern. However, in the light of the advice that the Lord Chancellor gave the Select Committee, there could be a case for announcing the terms of reference after a set period—perhaps a few weeks—to allow for discussion of the preliminary investigation and to allow individuals to make representations to the Minister setting up the inquiry. There is no reason why the inquiry should not be started and some preliminary work done while the terms of reference are being agreed.

Question put, That the amendment be made:—

The Committee divided:  Ayes 4, Noes 8.

NOES

Question accordingly negatived.

Clause 42 ordered to stand part of the Bill.

Clauses 43 to 48 ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 49 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 50 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clauses 51 to 53 ordered to stand part of the Bill.

Clause 54 - Short title

Christopher Leslie: I beg to move amendment No. 41, in clause 54, page 26, line 9, leave out subsection (2).
This is a technical amendment, which removes the Lords privilege amendment that was inserted on Third reading in the other place. The Committee will be aware that the House of Lords cannot consider matters of money or charges on public funds, so the subsection was therefore inserted in the other place. Following Second reading in the Commons, we passed the money resolution, so we can now remove that provision.

Amendment agreed to.

Clause 54, as amended, ordered to stand part of the Bill.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Christopher Leslie: I thank you, Mr. Gale, and your co-Chairman, Mr. Griffiths, for your safe and efficient stewardship of the Bill through Committee. We have scrutinised its clauses rigorously, and have given it good and effective consideration.
I thank the Clerks and those who ensured safe and good order in the Room. I also thank my officials for helpfully providing me with inspiration when required. Finally, I thank my hon. Friends for their support. It has been a great pleasure, and this is another Bill Committee under our belts.

Jonathan Djanogly: At the conclusion of what has been a brief but interesting and important Committee, I thank you, Mr. Gale, for your expert and fair chairmanship and your good humour. The same is true of your co-Chairman, Mr. Griffiths.
I thank Committee members for working well together to a tight timetable. We finish with no outstanding issues, but we certainly wasted no time identifying them. Finally, I thank the support staff—the Clerks, the Doorkeepers and police—for allowing it to happen.

Paul Tyler: I endorse everything that has been said by the Minister and the hon. Member for Huntingdon, and say the same on behalf of my party. As I said, I hope that this will be my swansong. At least I can leave with the happy memory of a well ordered Committee under your chairmanship, Mr. Gale, and that of Mr. Griffiths. I thank you for that.

Roger Gale: I thank hon. Members for their fine comments. I am sure that Mr. Griffiths’s attention will be drawn to them. This may prove to be the last Standing Committee on which hon. Members sit under his chairmanship.
I express my own appreciation for the work of the Officers of the House, without whom our proceedings would be well-nigh impossible. I am not at liberty to  comment on what might happen in April or May. That is a matter for conjecture. However, I think that it is in order for me to wish all hon. Members a happy Easter and a safe return on 4 April.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at sixteen minutes to Eleven o’clock.